Pursuant to Elections Code
Section 9005, we have reviewed the proposed initiative constitutional amendment
that establishes the right of Californians to possess firearms and requires the
judiciary to apply a test of “strict scrutiny” in the evaluation of state and
local actions regulating the right to bear arms (File No. SA2005RF0105).

Background

The U.S. Constitution’s
Second Amendment guarantees the right of citizens to keep and bear arms and has
been subject to significant court review for years. Currently, the State
Constitution has no equivalent provision. While the Second Amendment confers
specific rights regarding the right to bear arms, the courts have allowed
federal, state, and local governments to establish prohibitions and restrictions
on firearm ownership.

Proposal

This measure adds a new
section to the State Constitution that defines the existing right to defend life
and liberty to include the right of each person to keep and bear arms for the
defense of self, family, and home. The measure states that this right shall not
be infringed.

While individuals may
possess and carry firearms under this measure, many of the state’s existing
systems for background checks, weapons permits, and law enforcement
investigations of individuals with weapons would likely not change. For example:

Because the measure has
no impact on federal law and maintains prohibitions against the possession
of weapons by convicted felons and the mentally incompetent, it appears that
the state’s systems for background checks (including waiting periods) for
weapons purchases and concealed weapons permits would remain in place.

Under the provisions of
this constitutional amendment, it would still be illegal to possess and
carry a firearm for the purposes of committing a criminal act.

Because this measure
makes no direct change to existing state constitutional law, the state and
local governments would presumably still be responsible for using their
police powers to guarantee public safety, thus allowing for the continued
prohibition of weapons in certain public places or under certain
circumstances (for example, while a person is intoxicated or while operating
a motor vehicle).

Under this measure,
however, local jurisdictions would not be able to limit who obtains concealed
weapons permits unless the applicant does not meet federal or state criteria. In
addition, individuals could no longer be arrested and tried for simple
possession of a weapon, unless other circumstances existed. Currently, these
types of arrests are misdemeanor offenses where the individual is generally
cited and released.

The experience of other
states enacting similar measures has been an initial increase in requests for
concealed weapons permits, resulting in an increase in the number of background
checks.

The measure also amends
the State Constitution to require the application of a strict scrutiny test in
judicial review of state actions that restrict individual rights to acquire and
possess firearms. The strict scrutiny test presumes the challenged regulatory
action to be invalid and the burden of proof is on state and local governments
to show that the law serves a compelling public interest.

Under existing law, state
and local government actions regulating firearms have generally been tested
under the “rational relationship” test. This test presumes the legislation to be
valid if it is rationally related to a legitimate government purpose. The burden
of proof is on the challenging party to show that the law is unconstitutional.

The measure does not
limit the ability of the state to regulate the purchase and possession of
firearms by individuals who are:

Felons.

Minors.

Mentally incompetent.

Subject to restraining
orders based on their violent conduct.

Finally, this measure
stipulates that all local government action on this subject is preempted by
state law and the amendment.

Fiscal Effect

Direct Effects.
The strict scrutiny test could remove perceived barriers to challenging firearm
laws in the courts, resulting in increased legal expenses to the state for
defending firearm laws, as well as additional court costs.

The remaining provisions
of the measure will probably not result in any direct net cost to state
government because it does not specifically change existing statutes. Rather, it
establishes constitutional guidelines which apparently are not in conflict with
existing state laws and the systems for their implementation. In addition, while
there is a potential for an increase in the number of background checks
(primarily concealed weapons permits) processed by the Department of Justice,
this department is statutorily authorized to recover such costs through fees.

Local governments could
experience some costs and savings. The net fiscal impact is unknown.
Specifically, while the request for concealed weapons permits could increase,
resulting in additional processing costs, the number of concealed weapons
violations would likely decrease, resulting in savings to local law enforcement.
This measure could also increase legal expenses to local governments resulting
from an increase in the number of challenges to local firearm ordinances.

Indirect Effect.
While research in other states has shown that similar measures can result in
indirect savings and costs, much of this research is inconclusive regarding the
net effect of such changes. Savings could result from the potential reduction in
crime resulting from a larger number of citizens possessing firearms for
self-defense. On the other hand, increased costs could result from injuries and
death resulting from accidental and unintentional firearms use. The net impact
of these savings and costs is unknown.

Summary

We estimate that this
measure would result in unknown, potential costs to the state and unknown net
fiscal effect on local governments.